Daniel Lomagul Kandei & 2 others v Kamanga Holdings Limited and 40 Others
The bottom line
#The Court of Appeal ruled you cannot 'stay' an order that merely strikes out your case, and injunctions come too late once land titles already exist.
What this practically means
#Executive summary
#Key legal issues
#Whether a negative order is capable of being stayed
A negative order - the striking out or dismissal of a suit with no positive direction to any party - is incapable of being stayed; the motion therefore fails on this threshold issue.
The court traced a long line of its own decisions, including Western College of Arts and Applied Sciences v Oranga and Republic v Kenya Wildlife Service, which hold that where the superior court has not ordered any party to do or refrain from doing anything or to pay any sum, there is nothing capable of execution or stay. Since the ruling under appeal merely struck out the originating summons, only costs were executable and no stay could lie.
Whether the court could entertain the injunctive relief sought under Rule 5(2)(b)
The court had jurisdiction, exercising original discretion, to consider injunctive relief under Rule 5(2)(b) notwithstanding the rejection of the stay, but the applicants were not deserving of it.
Relying on Nairobi Metropolitan PSV Saccos Union and Equity Bank v West Link Mbo, the court recognised that Rule 5(2)(b) empowers it as a court of first instance to grant interlocutory orders preserving the subject matter of an appeal. However, applying Lake Tanners, the purpose of an injunction pending appeal is to preserve the status quo; since titles over the hived-off parcels had already been issued, an injunctive relief would serve no purpose and was refused.
Whether the pending notice of appeal service defect affected the competency of the motion
The court declined to determine the 38th respondent's application to strike out the appeal for late service, as it remained undetermined, and treated the notice of appeal as still valid for present purposes.
The 38th respondent had filed a motion to dismiss the appeal on account of late service of the notice of appeal beyond the 14-day period under Rule 77. The court declined to comment, to avoid embarrassing the court that would hear that motion, but held that since that motion had not been determined, the notice of appeal had not been invalidated and the present motion could proceed.
Legal principles established
#- A negative order, such as the dismissal or striking out of a suit, is incapable of being stayed.
- Under Rule 5(2)(b) an applicant must satisfy the twin principles of an arguable appeal and that the appeal would be rendered nugatory absent stay.
- An injunction pending appeal under Rule 5(2)(b) is meant to preserve the status quo and cannot be granted where the situation it targets has already crystallised.
Court orders
#- 1.The motion dated 26th January 2017 is dismissed with costs to the respondents
- On appeal from
- High Court of Kenya at Nyeri
- ELC No. 74 of 2016 (OS)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kamukunji Business Centre Limited & 1 other v Dorcas Nyokabi Wainaina & 2 others[2026] KECA 1285 (KLR)10 Jul 2026followed
- Assets Recovery Agency v Mike Sonko Mbuvi Gideon Kioko[2026] KECA 696 (KLR)25 Mar 2026applied
Cite this brief
#Cite this brief
Caselaw, "Daniel Lomagul Kandei & 2 others v Kamanga Holdings Limited and 40 Others", Case Analysis (2017). Civil Application No. 9 of 2017 (UR 7/17). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/551/eng@2017-05-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.